[Nichols was indicted for rape, alleged to have been committed upon one Mary Herndon. The defendant was a doctor. The prosecutrix testified that he pretended that it was necessary to use instruments in treating her, and so pulled up her clothing and had connection with her, holding her arms. The eyidence was very conflicting. The Woman claimed to have been assaulted appears' to have made no outcry and no immediate complaint, though there were others in the house. Afterwards she made an affidavit that she was satisfied that she was wrong in her charges against defendant.
The jury found a verdict of guilty of an assault. Defendant moved for a new trial on the following, among other grounds:
(1.) Because the verdict was contrary to law and evidence.
(2.) Because the issue was tried solely on the charge of rapé f counsel so argued the case, and no point was raised *192as to whether defendant might be convicted of assault, nor was counsel for defendant put upon notice that such an issue would be tried until the charge of the court was given. The court charged, among other.things, that.if defendant was not guilty of rape, the jury might consider whether ho was guilty of an assault; that if he took advantage of the relationship of physician and patient, and removed the garments of a female patient under the false and fraudulent pretence that he could not otherwise judge of the case, it would be an assault. The court charged further in regard to this subject, and read from Greenleaf on Evidence upon the same.
The motion w;as overruled, and defendant excepted.].